VICTIMISATION DISCRIMINATION – Protected disclosure
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Court of Appeal had remitted back to the Tribunal the issue of a Chagger claim for damages for stigma loss, following the termination of the Appellant’s contract as a worker after raising asbestos issues which had constituted a detriment under s.47B Employment Rights Act 1996 (Small v The Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882). The ET had not awarded any future loss beyond 13 November 2013, the period when it found that the Appellant would no longer have been engaged by the Respondent in any event. But the Court of Appeal found that it had been incumbent on the Tribunal to consider the possibility of stigma damages in light of the Tribunal’s findings that the effect of the Appellant’s disclosure had been ‘career ending’ for him. The Court of Appeal had expressly permitted the parties to adduce new evidence and advance new arguments at the Tribunal at the hearing of the remitted issue.
The Appellant sought to restrict the evidence before the Tribunal and challenge a third party discovery order made by the Tribunal in respect of the period prior to 13 November 2013, on the grounds that in making the order the Tribunal had exceeded the scope of the remission back by the Court of Appeal. His contention was that the evidence should be restricted to his job search post 13 November 2013.
The appeal was dismissed. The Tribunal has not sought to exceed its jurisdiction and go beyond the scope of the matter remitted to it by the Court of Appeal in making its order. It will be relevant to the consideration of stigma damages to explore his job seeking efforts and reasons for lack of success in the period both prior to, and post, the date that the Tribunal found he would have had his contract terminated by the Respondent if he had not made the protected disclosures. Those issues have not yet been considered by the Tribunal and are different to the general mitigation issues considered in its original remedy decision.
Citations:
[2019] UKEAT 0077 – 19 – 1908
Links:
Jurisdiction:
England and Wales
Employment
Updated: 07 September 2022; Ref: scu.642762
